Dear Maître S.,
On 13 November 1997, you made a complaint to the Ombudsman concerning the way in which the European Commission dealt with a complaint which you had made to DG XV of the Commission in December 1996.. Your complaint to the Commission was made on behalf of your clients, the consortium Casino d'Athènes, and alleged an infringement of Community law by the Greek authorities.
On 9 February 1998, I forwarded the complaint to the President of the European Commission. The Commission sent its opinion on 15 June 1998 and I forwarded it to you with an invitation to make observations by 30 September 1998 if you so wished. According to our records, no observations were received from you.
On 14 December 1998 I wrote to the Commission requesting a copy of the letter which had been addressed to you by Commission DG XV on 11 November 1997. The Commission forwarded the letter to me on 29 January 1999. On 1 March 1999, I wrote to the Commission requesting to inspect its file relating to the complaint which you had made to DG XV. The Commission replied on 14 April 1999, providing further information and enclosing copies of what it stated were all the documents in the file relating to the circumstances of its closure. On 22 April 1999, I wrote again to the Commission requesting to inspect the file and also to take oral evidence from the relevant officials in DG XV. After further correspondence concerning the procedures for the taking of oral evidence, both the inspection of the file and taking of oral evidence were carried out by my services on 24 June 1999.
On 1 July 1999 my services informed you by telephone that an inspection of the file had been carried out and that oral evidence had been taken and asked if you wished to have the opportunity to comment on the latter. You stated that your clients were no longer interested in the affair and that you did not therefore wish to comment on the oral evidence.
I am writing now to let you know the results of the inquiries that have been made.
To avoid misunderstanding, it is important to recall that the EC Treaty empowers the European Ombudsman to inquire into possible instances of maladministration only in the activities of Community institutions and bodies. The Statute of the Ombudsman specifically provides that no action by any other authority or person may be the subject of a complaint to the Ombudsman.
The Ombudsman's inquiries into your complaint have therefore been directed towards examining whether there has been maladministration in the activities of the European Commission.

THE COMPLAINT

The complainant is a lawyer acting on behalf of a client, the consortium Casino d'Athènes. According to the complainant, the relevant facts are as follows:
The consortium Casino d'Athènes was awarded a casino licence by the Greek government on 13 January 1995, following an international call for tenders. More than a year later, the Greek government cancelled the licence.
On 20 December 1996, the complainant made a complaint to the Commission on behalf of his clients claiming that the Greek government had infringed the Community Directives on Public Procurement. On 24 February 1997, Commissioner MONTI informed the complainant that the matter would be dealt with by DG XV/B/3.
On 20 June and 17 July 1997, the complainant had interviews with the Director of DG XV/B, Mr MATTERA, and on the latter date, handed over additional material concerning the complaint. It was agreed that DG XV would continue to investigate the case.
During the week 13-18 October 1997, the complainant's clients read in the Greek press that their case had been closed by the Commission. The complainant subsequently learnt that the Commission had closed the case at a meeting on 15 October 1997.
In his complaint to the Ombudsman the complainant claimed that:

(i) the Commission should have warned him that the decision to close the file was foreseen and invited observations within a reasonable period, in accordance with the undertaking which it had given to the European Ombudsman in his own-initiative inquiry into the infringement procedure;

(ii) the decision to close the file was made on the basis of a meeting of the heads of the Commissioners' Cabinets, whilst the case was still being dealt with by the competent service.

THE INQUIRY

The Commission's opinion
In summary, the Commission's opinion was as follows. The Commission services carefully examined the complaint which was submitted on behalf of the consortium Casino d'Athènes. By letter dated 23 April 1997, the Commission asked the Greek authorities for an explanation of the matter. The Greek authorities replied on 6 June 1997 and the matter was discussed at a bilateral meeting between the Commission and the Greek authorities, which was held in Athens at the end of June 1997.
The complainant subsequently asked for a meeting with the Commission services in order to be informed of developments in the case. At a meeting on 17 July 1997, the complainant was informed of the procedure and of the evaluation by the Commission services of the substance of the case. During this meeting, the Commission services expressed the hope that they would receive additional elements from the complainant in order to be able to pursue the case. However, no such new elements have been presented.
As regards the complainant's first claim, the opinion stated that the Commission has now taken all the necessary internal measures to inform its services of the undertaking which it gave to the Ombudsman in the framework of his inquiry into infringement procedures. However, at the time when the decision to close the file in this case was taken, the Commission had not yet put in place the internal measures to give effect to its undertaking.
As regards the complainant's second claim, the Commission stated that in the light of the replies from the Greek authorities and since no new information had been supplied by the complainants, the file was examined by the Commission at one of the regular meetings dealing with alleged infringements. This meeting had, as normal, been prepared by a special meeting of heads of cabinets in the course of which the closure of the file was foreseen. The complainant having been heard before the decision to close the file was made, this decision was taken on the basis of sufficient information. The complainants were informed of the decision and the reasons for it by letter dated 11 November 1997.
The Commission's opinion was forwarded to the complainant with an invitation to submit observations, but no observations were received.

FURTHER INQUIRIES

In December 1998, after carefully examining the Commission's opinion, the Ombudsman requested a copy of the Commission's letter to the complainant dated 11 November 1997. The Commission forwarded the letter in January 1999.
On 1 March 1999, the Ombudsman informed the Commission that he had completed his inquiries into the first aspect of the complaint. As regards the second aspect of the complaint, the Ombudsman stated that it was necessary for his services to inspect the relevant Commission file, in accordance with Article 3 (2) 1st indent (1) of the Statute of the Ombudsman.
In a reply dated 14 April 1999, the Commission gave further information concerning the procedure which led to the closure of its file on the Casino d'Athènes complaint. The Commission stated that under the Commission's internal infringement procedures, the case was
due to be discussed at the Commission's meeting of 15 October 1997.

"In preparation of that meeting, the Commission services prepared (3 September 1997) the requisite "fiche infraction" where they mentioned that they were waiting for further information the complainant might want to submit. By 30 September the services' proposal had remained the same, but it was evident to them that no additional elements were forthcoming since more than two months had elapsed since the relevant request was made. In view of these elements, when the case was discussed at the meeting of the heads of Cabinets of 9 October 1997, since it was clear that no information was to be expected any more from the complainant, the decision was therefore taken to propose to the Commission the closure of the file. The Commission acted on that proposal and closed the file on 15 October 1997."

The Commission also enclosed, on a confidential basis, a copy of the standard form used for recording the progress of each Commission investigation into an alleged infringement (fiche infraction) and a timetable of events. The Commission stated that these were the only documents in the file which relate to the circumstances of its closure and that, for that reason, the Commission took the liberty of sending them to the Ombudsman rather than have his staff put to the trouble of inspecting them in situ.
The Commission also stressed that in their letter to the complainant of 11 November 1997, the Commission services informed him that new infringement proceedings could be initiated, provided he supplied the requisite additional facts and arguments, but that this invitation remains unanswered.
The inspection of the file and the taking of oral evidence
On 22 April 1999, the Ombudsman wrote thanking the Commission for the additional information and for the copies of documents and repeating the request to inspect the file. The Ombudsman also informed the Commission that, after careful consideration of the information and documents forwarded to him by the Commission on 14 April 1999, he considered it necessary to take oral evidence from the officials in DG XV who dealt with the Casino D'Athenès complaint, in accordance with Article 3 (2) 4th indent of the Statute of the Ombudsman(2).
In reply, the Commission invited the Ombudsman to contact the General Secretariat of the Commission to make the necessary arrangements for the inspection of the file and for the taking of oral evidence and informed him that the DG XV officials concerned are Mr Alfonso MATTERA, director and Mr Konstantinos TOMARAS, Administrator.
After further correspondence concerning the procedures for the taking of oral evidence, both the inspection of the file and taking of oral evidence were carried out by the Ombudsman's services on 24 June 1999.
Oral evidence was taken using the following procedure:
1 The date, time and place for the taking of oral evidence were agreed between the Ombudsman's services and the General Secretariat of the Commission, which informed the witnesses. The oral evidence was taken on the Ombudsman's premises in Brussels.
2 Each witness was heard separately and was not accompanied.
3 The language of the proceedings was agreed between the Ombudsman's services and the Secretariat General of the Commission. At the request of the witnesses the proceedings were conducted in French.
4 The procedure was explained to each witness before the oral evidence was taken.
5 The questions and answers were recorded and transcribed by the Ombudsman's services.
6 Each witness was sent the transcript of his evidence for signature. The witnesses were invited to propose linguistic corrections to their answers. They were informed that if they wished to correct or complete an answer, the revised answer and the reasons for it should be set out in a separate document and annexed to the transcript. The signed transcripts form part of the Ombudsman's file on the case.
The Ombudsman's services informed the complainant by telephone that an inspection of the file had been carried out and that oral evidence had been taken. The complainant stated that his clients are no longer interested in the affair and that he did not therefore wish to comment on the oral evidence.

THE DECISION

1 The complainant's first claim
1.1 The complainant made a complaint to the Commission alleging an infringement of Community law by the Greek authorities in the Casino d'Athènes case. He claimed that the Commission closed the file in October 1997 without giving him an opportunity to submit observations, contrary to the undertaking which it had given to the European Ombudsman in his own-initiative inquiry into the infringement procedure.
1.2 In April 1997, the Ombudsman began an own-initiative inquiry into the possibilities for improving the quality of the Commission's administrative procedures for dealing with complaints concerning infringements of Community law by Member States(3). During the inquiry, the Commission undertook that, apart from cases where a complaint is obviously without foundation and cases where nothing further is heard from the complainant, it will ensure that a complainant is informed of its intention to close a case and its reasons. Complainants should therefore have the possibility to put forward views and criticisms concerning the Commission's point of view before the decision to close the file is taken.
1.3 In its opinion, the Commission stated that at the time when it took the decision to close the file in this case, it had not yet put in place the internal measures to give effect to the above-mentioned undertaking. However, it also stated that it has now taken all the necessary internal measures to inform its services of the undertaking.
1.4 The Commission's decision to close the file on the Casino d'Athènes case was contemporaneous with the letter of 13 October 1997 by which the European Ombudsman informed the Commission of the closure of the above-mentioned own-initiative inquiry. The Ombudsman's letter also informed the Commission of the importance which he attached to the undertaking it had given. The Commission's explanation of why it did not apply the undertaking in this case is therefore reasonable. Furthermore, it seems that the Commission has now taken all the necessary internal measures to give effect to the undertaking. There appears therefore to be no maladministration in relation to this aspect of the case.
2 The complainant's second claim
2.1 The complainant claimed that the decision to close the file on his complaint about an alleged infringement of Community law by the Greek authorities was made on the basis of a meeting of the heads of the Commissioners' Cabinets, whilst the case was still being dealt with by the competent service, DG XV.
2.2 Article 211 of the EC Treaty establishes the role of the Commission as the "Guardian of the Treaty". Its duty is to ensure that the provisions of the Treaty and the measures taken by the institutions pursuant thereto are applied.
2.3 According to the written evidence supplied by the Commission, the case of Casino d'Athènes was due to be examined by the Commission at its meeting of 15 October 1997, as part of the normal procedure for dealing with alleged infringements. On 3 September 1997, DGXV proposed that the case should be kept open to wait for further information which the complainant might want to submit and by 30 September 1997, its proposal remained the same. When the case was discussed at the meeting of the heads of Cabinets of 9 October 1997, the decision was taken to propose to the Commission the closure of the file, since it was clear that no information was to be expected any more from the complainant. The Commission acted on that proposal and closed the file.
2.4 The explanation and documents supplied by the Commission appeared not to exclude the possibility that the proposal to close the file had been made by the heads of Cabinets without giving the competent service enough time to complete an adequate investigation of the complaint. The Ombudsman therefore inspected the Commission's file on the complaint and took oral evidence both from the director of the unit in DG XV which dealt with the case, Mr MATTERA, and the official who dealt with the file, Mr TOMARAS.
2.5 The inspection of the file revealed no documents containing the reasons why the heads of Cabinet had apparently proposed to close the file on the complaint although the competent service had proposed that it should remain open.
2.6 The Ombudsman made the following findings of fact, based on the oral evidence given by Mr MATTERA and Mr TOMARAS in response to questions from the Ombudsman's services. The complainant was informed by DG XV at meetings in June and July 1997 that: (i) there appeared to be no infringement of Community law, since a tender can be cancelled, if there is justification to do so; (ii) the Greek authorities had supplied justification and; (iii) the complaint could not, therefore, be pursued unless the complainant supplied new elements, such as possible evidence that the tender had been cancelled in order to favour a competitor. On 3 September 1997, DG XV made a proposal to keep the case open in order to give the complainant a further opportunity to submit new elements. Before the meeting of heads of Cabinets on 9 October 1997, the competent service of DG XV was asked if, in its opinion, the case could now be closed. They answered that it could, since the complainant had not supplied any additional evidence. The complainant was informed that a new infringement proceeding could be initiated, provided that he supplied the requisite additional facts and arguments.
2.7 In view of the above findings of fact, there appeared to be no maladministration in relation to this aspect of the case.
Conclusion
2. On the basis of the European Ombudsman's inquiries into this complaint, there appears to have been no maladministration by the European Commission. The Ombudsman has therefore decided to close the case.
The President of the European Commission will also be informed of this decision.
Yours sincerely
Jacob SÖDERMAN

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(1) The Community institutions and bodies shall be obliged to supply the Ombudsman with any information he has requested of them and give him access to the files concerned. They may refuse only on duly substantiated grounds of secrecy.

(2) Officials and other servants of Community institutions and bodies must testify at the request of the Ombudsman; they shall speak on behalf of and in accordance with instructions from their administrations and shall continue to be bound by their duty of professional secrecy

(3) 303/97/PD, reported in the European Ombudsman's Annual Report for 1997 pp 270-274 and see the Commission's 15th Annual Report on Monitoring the Application of Community law (1997), Introduction pp III-IV (COM (1998) 317 final).